Opinion
April 5, 1985
Appeal from the Steuben County Court, Purple, J.
Present — Dillon, P.J., Boomer, Green, O'Donnell and Schnepp, JJ.
Judgment unanimously reversed, on the law, and a new trial granted. Memorandum: We have considered the facts found by the suppression court and we have determined that they have been established ( see, CPL 470.25 [d]).
After defendant requested an attorney, he was removed to an investigator's room. The investigator again advised him of his Miranda rights and the defendant stated, "I'm sorry I raped the woman" and shed a tear. The court below suppressed the statement, "I'm sorry I raped the woman" because defendant had invoked his right to counsel, but refused to suppress testimony about the tear.
The testimony about the tear that accompanied the suppressed statement should have also been excluded. "[O]nce a suspect in custody requests the assistance of counsel, he may not be questioned further in the absence of an attorney" ( People v Cunningham, 49 N.Y.2d 203, 205). Only if a statement was "made without apparent external cause, i.e, self-generating" will it be admissible ( People v. Stoesser, 53 N.Y.2d 648, 650). Protections afforded a criminal suspect's rights "are of no less force when the suspect has been wrongly induced to communicate through conduct than when he has made an oral statement" ( People v Rivera, 57 N.Y.2d 453, 455-456; see, Schmerber v. California, 384 U.S. 757, 760-765, 761, n 5). The tear was a physiological response which was inextricably bound up with the oral statement and both were products of the continued interrogational environment. Indeed, the prosecutor used the tear testimony to communicate precisely the same incriminating meaning as the excluded oral statement.
Finally it cannot be said that the error was harmless. The only contested issue at trial was whether the defendant lacked criminal responsibility by reason of mental disease or defect ( see, Penal Law former § 30.05; § 25.00). The evidence of sanity was far from overwhelming. The prosecutor's psychiatrist testified that the investigator's observation of the tear was one of the factors entering into his medical opinion that defendant appreciated the nature and wrongfulness of his act. The prosecutor also referred to the tear in summation. Under these circumstances, there was a "reasonable possibility that the error might have contributed to defendant's conviction" ( People v Crimmins, 36 N.Y.2d 230, 237). The defendant's conviction must be reversed and a new trial granted.
We have examined defendant's other claims of error and have found them to be without merit.